Excerpt: ...ased risk that the named plaintiffs and class counsel will breach the fiduciary obligations they owe to the absent class As a result, such agreements must withstand an even higher level of scrutiny for evidence of collusion or other conflicts of interest than is ordinarily required under Rule 23(e) before securing the court's approval as fair." (Koby v. ARS National Services, Inc. (9th Cir. 2017) 846 F. 3d 1071, 1079.) "[l]n the final analysis it...

Excerpt: ..., sixth and eighth causes of action. To overrule the demurrer for uncertainty. (Code Civ. Proc. S 430.10, (f).) To deny the motion to strike the allegations for punitive damages in paragraphs 79 and 96. The moton to strike paragraph 85 from the second cause of action is moot in light of the ruling sustaining the demurrer to the second cause of action. Plaintiff may file and serve a Second Amended Complaint. Such must be done within 10 days of the...

Excerpt: ...uest for treble damages and attorney's fees pursuant to Penal Code section 495. (Cal. Rules of Court, Rules 3.1WJ, subd. (a)(l); Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 257, 288.) [Although no evidence relating to liability is necessary for a prove-up hearing, evidence establishing a prima facie case for damages is required.] By defaulting, cross-defendant admits liability for the debt or obligation on all well pled causes of actio...

Excerpt: ...l Prmædure section 473, subdivision (b), prov-des for discretionary relief from a default or default judgment that has been entered due to mistake, surprise, inadvertence, or excusable neglect. Civ. Proc. S 473, subd. The party seeking relief must bring his or her moton within a reasonable time, not to exceed six months from the date of entry of the default or default judgment. (Ibid.) "Where the mistake is excusable and the party seeking relief...

Excerpt: ...), and Request for Production of Documents (Set One). Plaintiff Novalee Solis is ordered to serve verified responses, without objections, to defendant within 30 days of service of the minute order by the clerk. To grant defendant Walmart, Inc.'s request to deem Requests for Admissions admitted. The truth of the matters specified in the Requests for Admissions, Set One, are to be deemed admitted unless plaintiff Novalee Solis serves, before the he...

Excerpt: ...f's moton to compel further responses to request number 30. Defendant Kings Canpn Unified School District ("the District") shall provide further responses and produce all relevant documents in substantial compliance with Code of Civil Procedure sections 2031.210, 2031.220 and 2031.240, within 30 days of service of the order by the clerk. Explanation: Under Code of Civil Procedure, section 2025.450, subdivision (a), If, after service of a depositi...

Excerpt: ...issue or any part thereof shall precede the trial of any other issue or any part thereof in the case...." (Code Civ. Proc„ S 598.) Similarly, Code of Civil Procedure section 1048 provides that "[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expediton and economy, may order a separate trial of any cause of acton...or of any separate issue or of any number of causes of action or issu...

Excerpt: ...ation providing for this on or before May 3, 2023, together with the declarations from each party required by this subdivision. Civ. Proc., S 437c, subd. (t)(1)(A)(i) and (ii).) he stipulation must specify that the issue to be adjudicated is: "Did the PAGA claim survive the plaintiff's death, or did it abate, and if it abated, have defendants waived the issue?" The stipulation must also provide that the parties expressly waive the requirements fo...

Excerpt: ...sciences Institute, Inc. ("UNI"), and Joyce Fields-Keene (collectively, "CCFMG Defendants"). (Code Civ. Proc„ S 430.10, subd. (e).) To deny Scott Wells' motion for judgment on the pleadings as to the fourth cause of action. To grant his motion for judgment on the pleadings as to the third cause of action, with plaintiff granted 10 days' leave to file a Second Amended Complaint. The time in which such amended pleading may be filed will run from ...

Excerpt: ...te an auto repair business, with the oral agreement being that even though title would be taken the Morenos' names, plaintiff would make the payments on the property (mortgage, insurance, taxes, and maintenance), and the Morenos would just "hold title" in their name for plaintiff's convenience. This alleged agreement (the "Moreno Agreement") has spawned two legal action and years of litigation, with this achon commenced in 2016. At one point the ...

Excerpt: ... (APEC). Plaintiff is granted 10 days leave to file a First Amended Cross-complaint, which will run from service by the clerk of the minute order. New language must be set in boldface type. Explanation: Background This action is about a dispute between a general contractor (APEC) and its subcontractor (SLM) over money. After plaintiff SLM filed a Complaint against defendants APEC and American Contractors Indemnity Company over a contractual dispu...

Excerpt: ...an be filed will run from service by the clerk of the minute order. To overrule defendant's moton to strike as to punitive damages. To overrule defendant's moton to strike paragraphs 35 through 70. Explanation: Demurrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a caus...

Excerpt: ...endment in proper form where there is unwarranted delay in presenting it.... On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.' [Citation.] 'In the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.... Motions to amend are appropriately granted as late as the first day of trial or even during trial if the defendant is ...

Excerpt: ... no later than 20 days from the date of this order, with time to run from the service of this minute order by the clerk. Monetary sanctions in the amount of $510 are ordered in favor of judgment creditor and against judgment debtor. Monetary sanctions are to be paid to Campagne & Campagne, A Professional Corporation, no later than 30 days from the date of service of the minute order by the clerk. Explanation: On February 4, 2022, default judgment...

Excerpt: ...the court's signature within 10 days of the date of service of this order. Explanation: Plaintiff alleges two causes of action against the Clovis Rodeo Association based on general negligence and premises liability. Plaintiff alleges that she went onto the Clovis Rodeo grounds after midnight with a cowboy who was a participant in the rodeo in order to take a picture of a horse. She went into a trailer where the horse was being kept, and the horse...

Excerpt: ...fendant Juan Zaragoza and Martinez, Dieterich & Zarcone Legal Group (formerly known as Chavez Legal Group), jointly and severally, payable within 20 days of the date of this order, with the tme to run from the service of this minute order by the clerk. The matters specified in plaintiff Valerie Valero's Requests for Admission, Set One, propounded on Mr. Zaragoza are deemed admitted, unless Mr. Zaragoza serves, before the hearing, proposed respons...

Excerpt: ...Restoration International DRI, Inc. to Respond to Form Interrogatories, Set One, and Imposing Monetary Sanctions 3) Moton by Plaintiff CVE Contracting Group, Inc. for Order Compelling Defendant Disaster Restoration International — DRI, Inc. to Respond to Request for Production of Set One, and Imposing Monetary Sanctions Tentative Ruling: To grant plaintiff's motion to deem requests for admission admitted. The truth of the matters specified in t...

Excerpt: ...mply with The Superior Court of Fresno County, Local Rules, rule 2.1.5 ("rule 2.1.5"), which causes this court to lose personal jurisdiction over her. Defendant is mistaken. Rule 2.1.5 states: A plaintiff shall serve all named defendants with all pleadings and notices required by these rules or other law, including notice of a Case Management Conference, and shall file proof of service with the court, within sixty (60) days from the date the comp...

Excerpt: ...amend, the plaintiff may amend his or her complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend." (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023, citations omitted.) "It is the rule that when a trial court sustains a demurrer wi...

Excerpt: ...the property, when in fact she has a 4% interest. Also, Charmla has now passed away, so the judgment needs to be corrected to substitute her testate and intestate successors as the property owners in her place. The court does have the power to correct clerical errors in its judgment. (In re Goldberg's Estate (1938) 10 Cal.2d 709, 713- 714.) The court also retained jurisdiction to make further orders as needed to enforce the judgment. (Stipulated ...

Excerpt: ...bitrate." (Garlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) "Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute." (Mendez v. Mid Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Defendant Nissan North American, Inc. ("Nissan") moves to com#l arbitration of plaintiff's action pursuant to an arbitration clause in a retail installmen...

Excerpt: ...e cause of action for declaratory relief against defendants California Department of Human Resources and Eraina Ortega as Director for the California Department of Human Resources (collectively "defendants"). Plaintiff seeks a judicial declaration of its rights as affected by defendants' interpretation of certain state law. Defendants filed the instant demurrer to the First Amended Complaint ("FAC") on several grounds: (1) the court lack jurisdic...

Excerpt: ...ch pleading will run from service by the clerk of the minute order. All new allegations in the pleading are to be set in boldface type. Explanation: Plaintiff is a California non-profit public benefit corporation. To further plaintiff's mission, it provided Santé Health Foundation ("SHF")I with grant funding to stabilize and enhance the delivery of primary care and specialty physician care in the San Joaquin Valley. Plaintiff alleges that the gr...

Excerpt: ...y the pending court proceed-ngs until the arbitration is resolved. (Code Civ. Proc. S 1281.4.) To stay plaintiff's representative PAGA claims pending resolution of the arbitration. Explanation: Under Code of Civil Procedure section 1008, subdivision (a), a party moving for reconsideration of a court order must show that there are "new or different facts, circumstances, or law" that justify reconsideration of the order. (Code Civ. Proc. S 1008, su...

Excerpt: ...asis of the Complaint for damages. Plaintiff brought four causes of action against defendant Nissan North America, Inc., for negligent repair and failure to replace the vehicle. All of the causes of action against defendant comprise alleged breaches of Civil Code, section 1790 et seq. regarding consumer warranties, and fraud by omission that defendant was aware of the various defects to the vehicle but concealed the defects from plaintiff, who wo...

Excerpt: ...rther Responses from Defendants to Requests for Admission, Set One Tentative Ruling: To deny the motion regarding Requests for Admission. To continue the remaining motions to Thursday, May 11, 2023, at 3:30 p.m. in Department 501, to allow plaintiffs counsel to file a supplemental declaration attaching defendants' responses served December 2, 2022, which must be filed no later than May 1, 2023. Explanation: Responses Must Be Attached to Supportin...

Excerpt: ... Civil Procedure section 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been ...

Excerpt: ...ns against defendant Himanchal Verma in the amount of $500 for failure to serve discovery responses in compliance with the court's July 19, 2022 order. (Code Civ. Proc. SS 2023.030, subd. (a); 2030.300, subd. (e).) Explanation: Court's Motion to Strike the Answer of AC Express, LLC Defendant AC Express, LLC filed an answer to the complaint on August 30, 2021 as a self-represented litigant and, to date, remains without attorney representation. Thi...

Excerpt: ...dly to have been secured by real property (the "Property") sold by Plaintiff to Michael Cornell, deceased spouse defendant Margaret Cornell. Objections Initially, the court notes that it sustains objection number 6 to the Vic Pasnick email, as the document is not authenticated and constitutes hearsay. The remainder of the objections are overruled. Request for Continuance According to Plaintiff's counsel, Plaintiff has been out of the country sinc...

Excerpt: ...termine the appropriate public entity for petitioners' government claims; however, these efforts proved unsuccessful until. Representation on another matter for the driver, Mr. Steele, concluded and in the process of closing out that matter, this matter was inadvertently marked as resolved in the law firm's calendaring system. Counsel discovered this error in September of 2022, four months after the petitioners' claims should have been presented ...

Excerpt: ...planation: Plaintiff is Entitled to an Award of Fees and Costs A prevailing plaintiff under the Consumer Legal Remedies Act (CLRA) is entitled to an award of his or her attorney's fees and costs. Under Civil Code section 1780, subdivision (e), "The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section." (Italics added.) Here, plaintiff is the prevailing party in the CLRA litigatio...

Excerpt: ...ttlement shall be submitted to the agency at the same time that it is submitted to the court." (Lab. Code, S 2699, subd. (i)(2).) The statute does not explain what exactly the trial court should consider when reviewing a proposed PAGA settlement. However, recently the Court of Appeal in Moniz v. Adecco USA, Inc., (2021) 72 Cal.App.5th 56, did provide some guidance. The court explained that "many federal district courts have applied the 'fair, rea...

Excerpt: ...for denial of the moton exists (e.g., fraud, unconscionability, etc.) (Rosenthal v. Great Western Finll Securites Corp. (1996) 14 cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific ctr., Inc. (2006) 144 cal.App.4th 754, 758; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Defendants contend that the alleged arbitration agreement in this case is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. SS 1, et seq. Section 2 of the F...

Excerpt: ...else has to be proven, with admissible evidence, in order for due process concerns to be met. The Due Clause requires that the named plaintiff at all times adequately represent the interests of the absent class (Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 812.) The certification pruess ensures that is the case. This is a basic constitutional requirement which applies to all class actions, federal and state. "Confronted with a request fo...

Excerpt: ...by plaintiffs Richard Gaestel and Cindee Gaestel Lopez (collectively "Trustee Plaintiffs"). In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of achon u...

Excerpt: ..., either through adverse possession, or easement by prescription. The action further seeks declaratory relief regarding the rights and duties of the parties as to the Property. The defaults of each ofthe defendants were previously entered except: (1) the County of Fresno, who has consented to judgment subject to certain reservations; and (2) the DOE defendants remain. The court initially notes that plaintiff's application and proposed judgment fa...

Excerpt: ...'s motion to compel arbitration moot. Explanation: On June 29, 2022, plaintiffs filed the present achon regarding the purchase of a 2020 Chrysler Pacifica, which plaintiffs allege came with certain warranties. Problems with the vehicle ensued which form the basis of the instant complaint for damages. Plaintiffs brought five causes of achon against defendant FCA US, LLC ("FCA"), and one cause of action against defendant Fresno Chrysler Jeep Inc. d...

Excerpt: ...udgment pursuant to the terms of the settlement." It also provides that the parties may request that the court "retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." (Code Civ. Proc. S 664.6.) Due to the summary nature of the statute authorizing judgment to enforce a settlement agreement, strict compliance with its requirements is prerequisite to invoking the power of the court t...

Excerpt: ...planation: "An action shall be brought to trial within five years after the action is commenced against the defendant." (Code Civ. Proc., S 583.310.) "An action shall be dismissed by the court on its own motion or on moton of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article." Civ. Proc„ S 583.350, subd. (a).) "The requirements of this article are mandatory and are not s...

Excerpt: ...minute order. Given this order, plaintiff's default prove-up, with evidentiary hearing is ordered off calendar as moot. Explanation: Timeliness of Motion to Set Aside Default The court fails to understand plaintiff's argument that the set aside motion was not timely filed (Opposition, p. 5:11). The only basis offered for this, as far as the court can see, is that defendants "unreasonably" waited until after the defaults were entered to seek relie...

Excerpt: ...ject to the moton to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (Code Civ. Proc., S 435.5, subd. (a), emphasis added.) In order to obtain an extension of time to file a respo...

Excerpt: ...tal amount of $210 against defendant Maria Mauricio and Martinez, Dieterich & Zarcone Legal Group, jointly and severally, payable within 20 days of the date of this order, with the time to run from the service of this minute order by the clerk. To grant and to award monetary sanctions in the total amount of $630 against defendant Jose Luis Garcia Alcala and Martinez, Dieterich & Zarcone Legal Group, jointly and severally, payable within 20 days o...

Excerpt: ...nt to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: "The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certifi...

Excerpt: ...es of action, for negligence and for declaratory relief. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of university of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Barquis v....

Excerpt: ... a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, ...

Excerpt: ...o request 24 without objections within 20 days of the date of service of this order. Any responsive documents shall be unredacted. To deny defendant's motion for sanctions against plaintiff and her counsel. (Code Civ. Proc. S 128.7.) Explanation: Plaintiff's Motion to Compel Further Response: First, to the extent that defendant argues that the court lacks jurisdiction to hear plaintiff's motion because plaintiff's counsel did not timely serve the...

Excerpt: ... "shall not include a cause of action under the Song—Beverly Consumer Warranty Act." (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 929; Code Civ. Proc„ S 473, subd. (a)(l) ["The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend . " Emphasis added.]) The First Amended Complaint shall be filed within ten (10) days from the date of this order. New or different allegations in the First Amended...

Excerpt: ... of the total amount actually paid to the class members, pursuant to Code of Civil Procedure section 384, subdivision (b), so that the judgment can be amended and the distribution of any cy pres funds can be ordered. Documentation as to the amount paid to class members must be filed on or before March 12, 2024. Explanation: Final Approval of Settlement California Rules of Court, rule 3.769(g) states: "Before final approval, the court must conduct...

Excerpt: ...t whom a cause of achon is brought. The Sixth Amended Complaint may be filed within 10 days of service of the order by the clerk. All new allegations shall be in boldface type. Explanation: Judicial Notice It is "well settled" that the court is authorized to consider matters which may be judicially noticed when determining whether a complaint is suffcient to survive a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Code Civ. Proc. S 430.30,...

Excerpt: ...of his PAGA claim against defendant, and dismiss the representative portion of the PAGA claim. To stay the court action pending the outcome of arbitration. (Code Civ. Proc. S 1281.4) Explanation: under the Federal Arbitration Act ("FAA"), A written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or...